Another Surrogacy Case To Test What Makes A Mother

August 20, 1990|By Joan Beck.

Who is a mother?

Is she the woman who nurtures a child in her womb for nine months and gives him birth?

Or is she the woman who provides the ovum, arranges for it to be fertilized with her husband`s sperm, contracts with a surrogate to carry the fetus to birth and whose biological offspring the child indisputably is?

Once again, new reproductive technology has jumped ahead of the law, of ethical consensus-and of human emotions. There are no easy answers to the unprecedented questions-either in law or for the three expectant parents caught in the newest case.

This time the ethical cutting edge of biology involves Mark and Crispina Calvert, a California couple in their mid-30s, who very much wanted to have a baby. But Cris, a registered nurse, has had a hysterectomy because of uterine tumors. She could furnish an ovum, but could not sustain a pregnancy.

A colleague of Cris` knew that Anna Johnson, 29, a licensed vocational

(practical) nurse, talked about becoming a surrogate and introduced the women.

After psychological and medical evaluations, Anna, a single mother of a three year old, decided to bear the Calverts` baby for them. She was to be paid $10,000-a standard sum for surrogates.

Ova surgically removed from Cris were fertilized in a laboratory dish with Mark`s sperm and three developing eggs were placed in Anna`s uterus on Jan. 19. One survived, implanted and is growing.

The pregnancy that began happily soon became troubled. Relationships between the couple and the surrogate deteriorated into confrontation and accusation. Anna had to be hospitalized once for severe, persistent nausea and dehydration and again because of premature contractions.

The Calverts, Anna charged, weren`t sympathetic and helpful enough. They were late making payments to her. They reneged on an agreement to provide life insurance. They just didn`t care enough about her.

Last week, she filed suit in Santa Ana, Calif., for custody of the child that isn`t scheduled to be born for several more weeks. She also wants child- support payments and damages for emotional stress.``

Not so, the Calverts say. They made the payments earlier than contracted. They took Anna fruit, flowers and favorite foods. They drove her to medical appointments, sympathized with her complaints, were trying to arrange the life insurance. They feel exploited by Anna`s demands, threats to end the pregnancy early and insistance on keeping the baby.

The infamous Baby M case isn`t a useful legal precedent in this instance. Baby M is the genetic offspring of Mary Beth Whitehead, the surrogate mother who bore her after being artificially inseminated by the infant`s biological father, William Stern, whose wife, Elizabeth, feared a pregnancy would aggravate her mild multiple sclerosis.

The New Jersey Supreme Court awarded custody to the Sterns, but gave Whitehead visitation rights. It also ruled surrogacy contracts are illegal because they are, in effect, baby-selling. At least seven states have outlawed surrogacy contracts-but not California.

Anna Johnson, however, has less legal claim to this baby than Mary Beth Whitehead. Anna has no blood ties to this child, who genetically is the Calverts`.

It`s easy to sympathize with Anna, of course. Pregnancy is difficult and she has suffered more than the usual physical distresses. A pregnant woman does feel an emotional attachment to a baby in her womb whom she has never seen.

But one reason for a contract is to bind the parties to an agreement that one or the other might later want to ignore. Anna contracted to give the baby to the Calverts. She had been pregnant before. She knew what was involved. The court should uphold the contract and rule the baby belongs to the Calverts.

If the court considers the situation as a custody case and acts in the best interests of the child, the Calverts, with their stable marriage and higher educational and economic status, would seem preferable to a single parent.

These are not easy decisions. Emotions run high. At issue are some of the most fundamental rights and dreams of human beings. It`s tempting to back away from the questions involved, to urge that any kind of surrogacy be banned by law.

But that won`t work. The longings to have children are too powerful to ignore. As long ago as Old Testament times, men and women faced with infertility took great risks using surrogates to have children.

Women who choose to be surrogates do so for money, out of altruism, sometimes because they simply like being pregnant but don`t want to raise another child. They should have the right to use their bodies for this purpose if they so choose. Most surrogate situations end happily.

There should be laws not to ban surrogacy but to regulate it, to make sure women considering bearing a baby for someone else get adequate counseling before conception and after birth, that good medical care is provided, that surrogates follow essential prenatal precautions and that contract obligations are fulfilled. That still offers the best protections for everyone concerned.